Next On the Chopping Block: Civil Service Protections?The Supreme Court has weakened the guardrails around presidential power. The federal workforce may be next.
For more than 140 years, America has relied on a professional civil service protected from arbitrary political retaliation. The Roberts Court’s expanding vision of the Unitary Executive threatens to put that protection on the chopping block. Occasionally it happens that the name of a case decided by the Supreme Court reflects the significance of the case. Brown v. Board of Education and Loving v. Virginia come to mind – one ending the racist “separate but equal” doctrine and the other overturning on Constitutional grounds state bans on interracial marriages. Then there is Trump v. Slaughter, in which the Roberts Majority took a sledgehammer to separation of powers and may well be poised to end civil service protections for federal workers that have existed since the administration of Chester Arthur. Independent regulatory agencies have existed for well over a century based on the notion that some functions of government should operate at some remove from partisan politics. They have been created by Congress over the years to address increasingly complex issues related to the environment, consumer safety, fair treatment of labor, and unfair trade practices. By definition, these agencies require expertise and judgment in service to the public good. There are generally five Commissioners who serve staggered seven year terms and no more than three of whom may be from the same party. The president has the ability to ensure that a majority of commissioners are members of his party; to protect their independence they may only be removed for cause. Share At least that’s how the system worked until June 29 when the Roberts Majority, in pursuit of its theory of the Unitary Executive, concluded that for well over a century the government of the United States has been organized on an unconstitutional basis. As a remedy, the Roberts Majority gave the president unlimited (and unhinged) authority to fire any principal officer of any independent regulatory agency. The same day, however, they carved out an exception for the Federal Reserve based on the well-known legal doctrine that you need to get agreement from five of the six Republican members of the Supreme Court to this president unlimited power to control the Federal Reserve. The narrow issue in the Slaughter case was whether the president had the authority to fire a commissioner of the Federal Trade Commission without cause, notwithstanding clear statutory language to the contrary. The Roberts Majority overruled a long standing case (Humphry’s Executor) and held that the president could fire any Commissioner he wanted for any reason, or no reason. As Justice Elena Kagan put it in her dissent, the Roberts Majority decided upon “a sweeping new rule that will transform the balance of power across the Federal Government and deprive the public of Government impartiality in serving the public’s needs.” The Slaughter decision is a graphic illustration of the method employed by the Roberts Majority to overturn decades of precedent to achieve desired political outcomes. This term’s decision to declare the 14th Amendment unconstitutional by killing the Voting Rights Act (VRA) came after a series of cases that chipped away at individual sections of the VRA. The decision to overturn Roe v. Wade came after years of allowing states to impose greater and greater restrictions on a woman’s right to choose. What started out as an interpretation of the Second Amendment to protect the rights of individuals to have hand guns in their homes for self-defense is now a full blown assault on gun safety legislation, unless the legislation is based on a restriction that existed in 1789. What risk does Slaughter hold for the rights of federal employees protected by Civil Service Act protections? As happens when the Roberts Majority wants to overturn well established law, the Slaughter case built on a case from a 2020 case called Seila Law, in which opponents of the Consumer Financial Protection Bureau argued that the CFPB was unconstitutional in that it had a single commissioner who could only be removed for cause. The Roberts Majority agreed, holding that the president could fire anyone he wanted with two exceptions: “inferior officers” (that is, professional staff most of whom have civil service protections for arbitrary removal) and “expert agencies led by a group of principal officers removable only for cause.” Six years later, the Roberts Majority revisited the Seila Law case and decided that the Unitary Executive could slaughter any principal officer of any expert agency he wanted (except the Federal Reserve). If the president can fire the principal officers, the next up on the Unitary Executive chopping block is the entire federal work force. This issue likely will be entertained by the Roberts Majority next term. On July 19, Federal District Court Judge Michael Nachmanoff held that the president did not have the unilateral authority to fire the Chief Financial Officer of FEMA without following legally mandated procedures, noting that the Supreme Court first held in 1886 that, when Congress “vests the appointment of inferior officers in the heads of departments, it may limit and restrict the power of removal as it deems best for the public interest.” Trump claims the authority to fire anyone for any reason or no reason. The Roberts Majority has just handed him a massive increase in unilateral authority at the expense of Congress, providing an unprecedented concentration of power that will also enable political corruption. When the regulatory agencies are captive, pay to play will inevitably follow. The remaining obstacle to requiring political fealty at the expense of expertise and independent judgment is the federal work force. For over 140 years, our country has relied on a professional civil service based on merit and performance, protected from arbitrary removal by legal requirements for due process. Stay tuned. |